JOHN BERMAN (CO-ANCHOR): [Tucker Carlson] is saying that FBI operatives were somehow behind the insurrection. Joining us now, CNN senior legal analyst Elie Honig, a former state and federal prosecutor. And Elie, to you this is simply impossible, right?
ELIE HONIG (CNN SENIOR LEGAL ANALYST): Yeah, John, and let me explain how. So, Tucker Carlson uses this phrase, “unindicted co-conspirator.” And what he’s trying to tell his audience is, gee, that must mean these people were working for the FBI — undercover agents or informants.
He's got it wrong, here is why.
So, the phrase “unindicted co-conspirator” is not something you can apply to someone working for the FBI, because a conspiracy is a meeting of the minds, it’s an agreement between two people to commit a crime. However, if you're an FBI undercover, if you’re an informant, you’re not really part of a criminal agreement — you’re pretending for the sake of the investigation. So no prosecutor would ever use this phrase, “unindicted co-conspirator” to refer to somebody working for the FBI.
We do use this phrase all the time to refer to other things, to refer to people who are still being investigated, who might be charged, to refer to people who have been arrested and then cooperated later — different thing from what Carlson's talking about — or to refer to people who we don't know exactly who they are yet. So, Tucker Carlson, all due respect to him, I've written a few more indictments than he has. He's got that dead wrong.
JOHN BERMAN: You never, in all of your experience, referred to someone at the FBI as an “unindicted co-conspirator”?
HONIG: It is physically impossible. It is legally impossible.
BERMAN: You don't know anyone — no prosecutor who's ever done that, as far as you know?
HONIG: Now, there are other ways to use generic labels for people like Carlson uses there, “Person-1,” “Individual-1.” By and large, those are used interchangeably with “unindicted co-conspirator.” They can have broader meanings, as well.
I’m going to give you a couple of examples. First of all, we all remember the Michael Cohen case, when the U.S. Department of Justice said on record in a filing that Cohen, as he has admitted with respect to both payments, he acted in coordination with and at the direction of this not-so-mysterious “Individual-1.” Who did that turn out to be? Of course, we know that turned out to be Donald Trump. Was Donald Trump working for the FBI? Of course not. This is how prosecutors use these terms. I’ll give you another example, also in the Michael Cohen case, the Justice Department referred to a generic “Client-3.” Now, later it came out in court papers that that Client-3 was Sean Hannity — I think he works with Tucker Carlson.
BERMAN: Was he working for the FBI?
HONIG: Exactly the point, right, not working the FBI. This is a common thing prosecutors do. Tucker Carlson is making absurd leaps of faith here, absurd assumptions that are just outlandish.